Tennessee Judicial Selection, Amendment 2 (2014)

Amendment 2 Click here for the latest news on U.S. ballot measures Quick stats Type: Constitutional amendment Constitution: Tennessee Constitution Referred by: Tennessee State Legislature Topic: State judiciary Status: Approved a

2014 measures November 4 Amendment 1 a Amendment 2 a Amendment 3 a Amendment 4 a Endorsements Local measures

The Tennessee Judicial Selection, Amendment 2 was on the November 4, 2014 ballot in the state of Tennessee as a legislatively-referred constitutional amendment, where it was approved.

Amendment 2 empowered the governor to appoint judges to the supreme court or any other state appellate courts subject to confirmation by the general assembly. Under Amendment 2, an appointed judge will serve an eight-year term. Thereafter, the judge could serve another term via a retention election by voters.

Amendment 2 established a judicial selection system similar to the state's previous system, but dismantled the Judicial Nominating Commission and empowered the legislature to confirm or reject appointments. At the time of the amendment's approval, this process mirrored the selection process for federal judges. Section 3 of Article VI of the Tennessee Constitution, prior to the adoption of Amendment 2, said, "The judges of the Supreme Court shall be elected by the qualified voters of the state." However, the state had not used a merit-selection system since 1994.

Amendment 2 was sponsored in the Tennessee Senate by State Senator Brian Kelsey (R-31) and in the Tennessee House by State Representative Jon Lundberg (R-1) as SJR 2.

In Tennessee, a legislatively-referred constitutional amendment must earn a majority of those voting on the amendment and "a majority of all the citizens of the state voting for governor.”

Election results

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This ballot measure article has preliminary election results. Certified election results will be added as soon as they are made available by the state or county election office. The following totals are as of 100 percent of precincts reporting.

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Tennessee Amendment 2
Result		Votes	Percentage
a Yes		831549	60.92%
No		533522	39.08%

Election results via: Tennessee Secretary of State Office

Text of measure

Ballot title

The official ballot text was as follows:

“

Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following: Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article. □ Yes □ No

”

Constitutional changes

Tennessee Constitution
Preamble
Articles
I • II • III • IV • V • VI • VII • VIII • IX • X • XI • Schedule

See also: Article VI, Tennessee Constitution

The ballot measure amended Section 3 of Article VI of the Constitution of Tennessee to read:

The judges of the Supreme Court shall be elected by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years.

Fiscal note

The fiscal note developed by the Tennessee General Assembly Fiscal Review Committee was as follows:

“

ESTIMATED FISCAL IMPACT: Increase Local Expenditures – Up to $10,000/FY14-15* Assumptions: • The proposed constitutional amendment received the required constitutional majority vote with passage of Senate Joint Resolution 701 by the 107th General Assembly. The required publication was made on May 6, 2012. • Following first passage by two successive General Assemblies, and pursuant to Article XI, Section 3 of the Tennessee Constitution, it shall be the duty of the General Assembly to submit such proposed amendment to the people at the next general election in which a Governor is to be chosen. • Tenn. Code Ann. § 2-5-211(b) requires the county election commission to publish a sample ballot in a newspaper of general circulation or mail sample ballots to registered voters at least five days prior to early voting. • The requirement to add this constitutional amendment to the 2014 general election ballot will increase the size of the sample ballot. • Given the size of the sample ballot will increase, and because publishing costs are generally based on the number of words published or the number of document pages printed, local government expenditures are expected to increase. • Based on information provided by the Secretary of State, the total statewide increase in local government expenditures is reasonably estimated as an amount up to $10,000 in FY14-15.

”

Background

See also: Judicial selection in Tennessee

Prior to Amendment 2's approval, the Tennessee Constitution stated, “The judges of the Supreme Court shall be elected by the qualified voters of the state.” Since 1971, however, the state had used a merit-selection process for judiciaries. Since 1994, the Judicial Selection Committee had selected nominees for appellate courts. The governor then selected judges from those nominees, and constituents voted whether or not to retain them. This arrangement was known as the "Tennessee Plan." Amendment 2 dismantled the Judicial Selection Committee. Amendment 2's arrangement is known as the "Modified Federal Plan."

Support

The campaign in support of the initiative was led by Vote Yes on 2.

The measure was sponsored in the legislature by Sen. Brian Kelsey (R-31) and Rep. Jon Lundberg (R-1).

Supporters

Officials

• Gov. Bill Haslam (R)
• Lt. Gov. Ron Ramsey (R)
• US Sen. Lamar Alexander (R)
• Supreme Court Justice Jeff Bivens
• Memphis Mayor A.C. Wharton, Jr. (D)
• Nashville Mayor Karl Dean (D)

Senate

The following state senators voted to place the measure on the ballot:

Note: A yes vote on the measure merely referred the question to voters and did not necessarily mean these legislators approved of the stipulations laid out in Amendment 2.

• Steve Southerland (R-1)
• Doug Overbey (R-2)
• Rusty Crowe (R-3)
• Ron Ramsey (R-4)
• Randy McNally (R-5)
• Becky Duncan Massey (R-6)
• Mike Bell (R-9)
• Todd Gardenhire (R-10)
• Bo Watson (R-11)
• Ken Yager (R-12)
• Bill Ketron (R-13)
• Jim Tracy (R-14)
• Charlotte Burks (D-15)
• Janice Bowling (R-16)
• Mae Beavers (R-17)
• Ferrell Haile (R-18)
• Thelma Harper (D-19)
• Steven Dickerson (R-20)
• Douglas Henry (D-21)
• Mark Green (R-22)
• Jack Johnson (R-23)
• John Stevens (R-24)
• Jim Summerville (R-25)
• Dolores Gresham (R-26)
• Lowe Finney (R-27)
• Joey Hensley (D-28)
• Ophelia Ford (D-29)
• Jim Kyle (D-30)
• Brian Kelsey (R-31)
• Mark Norris (R-32)
• Reginald Tate (D-33)

House

The following state representatives voted to place the measure on the ballot:

Note: A yes vote on the measure merely referred the question to voters and did not necessarily mean these legislators approved of the stipulations laid out in Amendment 2.

• Jon Lundberg (R-1)
• Tony Shipley (R-2)
• Kent Williams (CCR-4)
• David Hawk (R-5)
• Art Swann (R-8)
• Mike Harrison (R-9)
• Tilman Goins (R-10)
• Jeremy Faison (R-11)
• Dale Carr (R-12)
• Gloria Johnson (D-13)
• Ryan Haynes (R-14)
• Joe Armstrong (D-15)
• Bill Dunn (R-16)
• Andrew E. Farmer (R-17)
• Harry Brooks (R-19)
• Robert Ramsey (R-20)
• Jimmy Matlock (R-21)
• Eric Watson (R-22)
• John W. Forgety (R-23)
• Kevin Brooks (R-24)
• Cameron Sexton (R-25)
• Gerald McCormick (R-26)
• Richard Floyd (R-27)
• JoAnne Favors (D-28)
• Mike Carter (R-29)
• Vince Dean (R-30)
• Ron Travis (R-31)
• Kent Calfee (R-32)
• John Ragan (R-33)
• Dennis Roach (R-35)
• Dennis Powers (R-36)
• Dawn White (R-37)
• David Alexander (R-39)
• Terri Lynn Weaver (R-40)
• Ryan Williams (R-42)
• William G. Lamberth (R-44)
• Courtney Rogers (R-45)
• Mark Pody (R-46)
• Judd Matheny (R-47)
• Mike Sparks (R-49)
• Bo Mitchell (D-50)
• Michael Turner (D-51)
• Mike Stewart (D-52)
• Jason Powell (D-53)
• Brenda Gilmore (D-54)
• Gary Odom (D-55)
• Beth Harwell (R-56)
• Susan Lynn (R-57)
• Harold M. Love (D-58)
• Sherry Jones (D-59)
• Darren Jernigan (D-60)
• Charles Sargent, Jr. (R-61)
• Pat Marsh (R-62)
• Glen Casada (R-63)
• Jeremy Durham (R-65)
• Joshua Evans (R-66)
• Joe Pitts (D-67)
• Curtis Johnson (R-68)
• David Shepard (D-69)
• Barry Doss (R-70)
• Vance Dennis (R-71)
• Steve McDaniel (R-72)
• Jimmy Eldridge (R-73)
• Tim Wirgau (R-75)
• Bill Sanderson (R-77)
• Mary Littleton (R-78)
• Curtis Halford (R-79)
• Johnny Shaw (D-80)
• Debra Moody (R-81)
• Craig Fitzhugh (D-82)
• Mark White (R-83)
• Joe Towns, Jr. (D-84)
• Barbara Cooper (D-86)
• Karen Camper (D-87)
• Larry Miller (D-88)
• Roger Kane (R-89)
• John Deberry, Jr. (D-90)
• Billy Spivey (R-92)
• Barrett Rich (R-94)
• Curry Todd (R-95)
• Stephen McManus (R-96)
• Jim Coley (R-97)
• Antonio Parkinson (D-98)
• Ron Lollar (R-99)

Former officials

• Former Gov. Phil Bredesen (D)
• Former U.S. Sen. Fred Thompson (R)
• Former U.S. Attorney General Alberto Gonzales (R)

Organizations

• Tennessee Bar Association
• Tennessee Chamber of Commerce & Industry
• Tennessee Business Roundtable
• Tennessee Farm Bureau Federation
• Beacon Center of Tennessee
• Tennessee AFL-CIO Labor Council
• Tennessee NAACP
• Tennessee Business Partnership
• Tennessee Bankers Association
• Fraternal Order of Police, Tennessee
• Women’s Political Collaborative
• Tennessee Lawyers' Association for Women
• East Tennessee Lawyers' Association for Women
• Tennessee Hospital Association
• League of Women Voters
• Tennessee Sheriffs' Association
• Tennessee Public Defenders
• Blount County Bar Association
• Chattanooga Bar Association
• Knoxville Bar Association
• Memphis Bar Association
• Nashville Bar Association
• Greater Memphis Chamber
• Clarksville Chamber of Commerce
• Jackson Chamber
• Rutherford County Chamber of Commerce
• Kingsport Chamber of Commerce
• Nashville Area Chamber of Commerce
• Nashville Area Hispanic Chamber of Commerce
• Knoxville Chamber
• Chattanooga Area Chamber
• Williamson, Inc. Chamber

Arguments

Vote Yes on 2 video ad advocating for Amendment 2.

Former Gov. Phil Bredesen (D) and former U.S. Sen. Fred Thompson (R) co-wrote an op-ed outlining supporting arguments for Amendment 2:

• “A stable and impartial judiciary is vitally important to all of us. But in recent years, there have been numerous legal challenges to the way we in Tennessee select our appellate court judges. These continuing challenges, and the confusion they create, threaten to destabilize and weaken our judiciary and our state.”
• “Passing Amendment #2 will put an end to the questions and will help ensure we get the most qualified, diverse, fair and impartial judges that Tennesseans want and deserve.”
• "Amendment #2 gives Tennesseans three powerful votes in the selection of our appellate judges:

1. By voting for the governor, who will make the appointments.
2. By voting for our state senators and representatives, who will confirm or reject the appointments.
3. By voting to keep or fire the judges at the end of their respective terms."

• "Passing Amendment #2 will help keep the influence of special interest money away from our judges and out of our state."

Other arguments in favor of the amendment included:

• Former Gov. Phil Bredesen (D) argued that contested elections for the judiciary would allow special and financial interests to become involved. He said, “Suddenly you get at the last minute somebody on there who’s promised to, I don’t know, stop all abortions or something like that. You get just a lot of outside money coming into elections. You can do that to a governor or to a congressman, but I think it’s particularly effective and dangerous with races that people are generally not interested in.”
• Sen. Brian Kelsey (R-31) suggested the nation’s founding figures developed a similar plan to the one proposed. He noted, “The people of Tennessee are not presently voting for judges in open contested elections. And the people of Tennessee have never been asked whether or not they favor following the judicial selection plan that our founding fathers of the U.S. Constitution came up with. Let’s give them the chance to vote on that.”

Campaign contributions

Total campaign cash as of October 27, 2014
Support:	$771,301
Opposition:	$2,250

As of October 27, 2014, Vote Yes on 2 had received $771,301 in contributions.

PAC info:

PAC	Amount raised	Amount spent
Vote Yes on 2	$771,301	$213,669
Total	$771,301	$213,669

Top contributors:

Donor	Amount
Tennessee Business Partnership	$425,000
BB&S Good Government	$75,000
Waller Lansden Dortch & Davis LLP	$75,000
Backer, Donelson, Bearman, Caldwell & Berkowitz	$50,000
Butler Snow LLP	$50,000
Bridgestone Americas Tire Operations, LLC	$25,000
Neal & Harwell, PLLC	$20,000

Campaign advertisements

A Vote Yes on 2 ad, titled "Gov. Bill Haslam: Yes on 2."

A Vote Yes on 2 ad, titled "Everyone."

Opposition

The campaign in opposition to the amendment was led by Vote NO on 2! John Avery Emison was the State Coordinator of Vote NO on 2!

Opponents

Officials

Senate

The following state senators voted against placing the amendment on the ballot:

• Stacey Campfield (R-7)
• Frank Niceley (R-8)

The following state senators voted to place the amendment on the ballot, although they later stated their opposition to the measure:

• Sen. Mae Beavers (R-17)
• Sen. Reginald Tate (D-33)

House

The following state representatives voted against placing the amendment on the ballot:

• Timothy Hill (R-3)
• James Van Huss (R-6)
• Matthew Hill (R-7)
• Steve Hall (R-18)
• Richard B. Womick (R-34)
• Kelly Keisling (R-38)
• John Windle (D-41)
• Joe Carr (R-48)
• Sheila Butt (R-64)
• John Tidwell (D-74)
• Andrew H. Holt (R-76)
• Johnnie Turner (D-85)
• Goffrey A. Hardaway (D-93)

Former officials

The following former official voted against placing the amendment on the ballot:

• Former Rep. Charles Curtiss (D-43)

Organizations

• Tennesseans for Independent Courts

Individuals

• John Jay Hooker (D)

Arguments

Kevin Thompson, an attorney, interviewing John Jay Hooker on Amendment 2.

John Jay Hooker (D), described as a "political legend" by Tennessee Watchdog, called the amendment "a political ploy." He elaborated:

“	The state constitution says that judges shall be elected by the qualified voters. It’s pretty hard to misunderstand that language. My view is that the retention election statute is unconstitutional, blatantly on its face and that the judges who sit on the Court of Appeals and the Supreme Court know it, yet they sit there anyway... There is no way to read the state Constitution to mean that the Legislature has the authority to say they shall be appointed by the governor.	”
—John Jay Hooker

John Avery Emison, State Coordinator of Vote NO on 2!, urged voters to reject Amendment 2. He argued:

“	The real truth behind Amendment 2 is the belief that the Governor is able to pick better judges than the public. This is nothing less than an argument against self-government, and a slap in the face of the Governor’s own supporters. If the people are qualified to elect the Governor, why aren’t the voters who supported him equally qualified to elect the Supreme Court, and other appellate courts? The answer is, “Of course, they are.” We believe a court system of elected judges is a better court system than appointed judges. One has only to look at the conflict, confusion, and lack of accountability to the public that is clearly evident in the Federal court system where all judges are appointed. We believe most Tennesseans agree that our system of electing judges is far superior to the way they do things in Washington. So, our message is simple: Don’t give up the right to vote. Protect the Constitution. Vote NO on 2.	”
—John Avery Emison

Other arguments against the amendment included:

• Bret Brandenburg, executive director of Justice at Stake, critiqued the amendment, saying, “It is troubling that Tennessee legislators are pursuing a constitutional amendment that would inject partisan politics into the state’s judicial selection process. For many years, Tennesseans have benefited from a process for picking judges that focuses on  qualifications, not partisan politics. SJR 02 would replace the highly regarded ‘Tennessee Plan’ with a Washington-style system that gives the Governor unilateral authority to pick judges, and subjects confirmations to DC-style gridlock and backroom deals.”

Campaign contributions

As of October 27, 2014, Vote NO on 2! had received $2,250 in contributions.

PAC info:

PAC	Amount raised	Amount spent
Vote NO on 2!	$2,250	$29
Total	$2,250	$29

Top contributors:

Donor	Amount
Forest Shoaf	$1,000
Anthony Hagan	$1,000

Media editorial positions

See also: Endorsements of Tennessee ballot measures, 2014

Support

• Knoxville News Sentinel
• The Paris Post-Intelligencer said, "The genius of the plan is that it supports both the voice of the people and the freedom of the judiciary, a difficult balancing act."

Opposition

• The Tennessean said, "You are a responsible voter and should be treated as such. It is incumbent upon us to demand information about candidates and vote our conscience, and not shirk the responsibility that our constitution's authors gave us. We should not give that responsibility to an elite few who believe that only their opinion counts."

Controversies

Ramsey's involvement in retentions

See also: Tennessee Supreme Court elections, 2014

Both Gov. Bill Haslam (R) and Lt. Gov. Ron Ramsey (R) were involved in the campaign organization Yes on 2.

Ramsey also played an active role in opposing the retention of three Tennessee Supreme Court judges in the primary election on August 7, 2014. He argued in interviews with local media that voters had the right to vote yes or no for retention, though he hoped to see Cornelia Clark, Gary R. Wade and Sharon Lee out of office. Clark, Wade and Lee were appointed by former Democratic Gov. Phil Bredesen. Since the current governor, Bill Haslam, is a Republican, Ramsey saw a greater likelihood that Haslam would appoint members of his own party to fill seats on the court.

Since Amendment 2 supporters, like Haslam and Ramsey, argued that the constitutional change would keep politics out of judicial selections, Gov. Haslam expressed concern that Ramsey's involvement in the retention elections could "muddy the waters for Amendment 2."

In an interview with Nashville Scene, Ramsey argued that his anti-retention stance in the supreme court race legitimated the retention election process, rather than discouraging support for Amendment 2:

“	Q: The governor yesterday say [sic] he is worried that the campaign to defeat the three incumbent justices might “muddy the waters,” his words, on his “Yes on 2” campaign. You disagree, presumably? RAMSEY: I have not talked to the governor about this but I cannot connect the dots on that one. If anything, if we have a true election — as the supreme court has said retention elections are and the people get the right to either retain or not retain — that legitimizes the retention election process. And in my opinion, in the end, will actually help the amendment pass, not hurt the amendment. I cannot understand any argument where it actually hurts it. I don’t. Now, I have not talked to the governor about this. I read it in the news accounts, and I will, I just haven’t had a chance yet. But I cannot understand that argument at all.	”
—Lt. Gov. Ron Ramsey

Ramsey's political action committee spent over $400,000 trying to oust the three judges. Nonetheless, all three were retained by voters on election day.

Path to the ballot

See also: Amending the Tennessee Constitution

The Tennessee General Assembly was required to approve the amendment in two successive sessions. In the first session, the measure required a simple majority for approval. In the second session, the proposed amendment needed to earn a two-thirds vote for approval. SJR 2 was approved by the Tennessee Senate for a second time on February 21, 2013. SJR 2 was approved by the Tennessee House of Representatives for a second time on March 11, 2013.

Senate vote

February 21, 2013 Senate vote

Tennessee SJR 2 Senate Vote
Result		Votes	Percentage
a Yes		29	93.55%
No		2	6.45%

House vote

March 11, 2013 House vote

Tennessee SJR 2 House Vote
Result		Votes	Percentage
a Yes		74	84.09%
No		14	15.91%

See also

Suggest a link

• Tennessee 2014 ballot measures
• 2014 ballot measures
• Tennessee Legislature
• Judicial selection in Tennessee

External links

Basic information

• Senate Joint Resolution 2

Support

• Vote Yes on 2
• Vote Yes on 2 Facebook
• Vote Yes on 2 Twitter
• Vote Yes on 2 Youtube

Opposition

• Vote NO on 2! Facebook

Additional reading

• The Tribune, "Panel that evaluates state's appellate judges often works outside public view," March 15, 2014